CAAFlog » Court-Martial News

In the justice delayed category we have this report from Marine Corps Times about unresolved alleged miclsconduct by the Marine Corps head of the Joint Non-Lethal Weapons Directorate in Quantico, Va. Apparently this misconduct came to light in March 2013 and resulted in Col. Tracy Tafolla’s removal as commander of the directorate. But no action has been taken since that time. The actions fall into the gray area between sexual harassment and sexual assault. But if Colonel Taffola was Staff Sergeant Taffola, I think the chances are high there would already be preferred charges. Whether that’s the right result or not is a different question and one you can’t answer without more facts.  Update:  A commenter noted that at the end of the article the Marine Corps spokesman stated that NJP proceedings are not released to the public (which is actually not true, the services release that info when it suits their needs): “It’s possible, though, that he will receive nonjudicial punishment as a result of the accusations, or that he has already accepted an NJP. Runyon said that because NJP proceedings are not open to the public, he could not release any information about that process.”  So justice may not be delayed as NJP may have been imposed.  So there you go, maybe justice has not been delayed and this O-6 has received NJP for this conduct.

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.


From Stars and Stripes, here:

The Army has issued a formal reprimand for misconduct to its former top sex-crimes prosecutor after investigating a complaint that he kissed and groped a female officer while attending a conference on sexual-assault prevention, according to Army officials.

Lt. Col. Joseph “Jay” Morse received the reprimand in late June, officials said, four months after the Army received the complaint and suspended him from his job as supervisor of the Army’s special-victim prosecutors.

Morse has apparently notified the Army that he plans to retire.  Can things get any worse on this front . . . did I actually type that?  H/t JG

Much coverage of Sergeant Bowe Bergdahl’s retention of former NIMJ President Eugene Fidell, here (NBC), here (ABC), and here (Fox). Bergdahl is reportedly working a desk job at Ft. Sam Houston in San Antonio after finishing reintegration training for former POWs.

Bergdahl matter will have a two-star investigating officer, see DoD press release here and Army Times coverage here.  The statements says:

The Army has initiated its investigation into the facts and circumstances surrounding the disappearance and capture of Sgt. Bowe R. Bergdahl from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan on or about June 30, 2009. The Army has appointed as the investigating officer Maj. Gen. Kenneth R. Dahl, an Army officer with Afghanistan combat experience.

In related news, General Martins, former chief prosecutor for the military commissions told reporters that the five detainees traded for SGT Bergdahl could not have been prosecuted by the tribunals at Gitmo, Miami Herald coverage here.

On the Hill, Rep. John Kline introduced a bill to expand sexual assault victims services to reservists, Congressman’s website post here and here (The Hill).  The expanded services would make victim advocates available to reservists regardless of when, where or by whom they were sexually assaulted.  And the Senate also recently referred to the Veterans committee a bill that the House recently passed, HR 2527. The bill to provide counseling and other services to servicemembers that suffered sexual trauma during inactive duty or training, The Hill coverage here.

Continued testimony in the shadowy FBI investigation that led them to question Gitmo detainee defense team support staff members without disclosing the investigation to defense counsel.  Miami Herald coverage here.

As tipsters and commenters have been reporting, Marine Corps Times, here, is running a story that says the prosecutor that oversaw the NCIS raid of Marine Corps defense offices at Camp Pendleton was removed from his job (prior coverage here and here).  It also notes that at least one and possibly other Marine Corps’ trial judges ruled that the “search on defense offices, instigated and overseen by the prosecution, constituted apparent unlawful command influence . . . .” The story includes pictures of the defense counsel office raid at Camp Pendleton  and this piece of information as well:

The attorneys prosecuting on behalf of the U.S. government called for the May 2 search with the intent of unearthing a cell phone containing evidence in the case of Marine Sgt. Rigo Betancourt, accused of drug-related crimes. The defense team on the case provided text messages from the phone to prosecuting attorneys, but refused to turn over the phone itself without a judicial order. The prosecutors then obtained the equivalent of a search warrant from Col. Tracy King, then-commander of Combat Logistics Regiment 15 and the designated area commander. In the ensuing two-and-a-half-hour armed search, investigators unearthed the phone in question within minutes, but continued to scour the remaining office spaces, where material for many other active cases was kept.

The story alerts us that Marine Corps trial judge Lt. Col. Chris Thielemann also recently issued a veiled reprimand of defense counsel for their response to the raid:

Thielemann’s ruling in the Miramontes case also contained a veiled reprimand for senior Marine defense attorney Lt. Col. Clay Plummer, who denounced the office search to The Associated Press shortly after it took place, calling it “unacceptable” and “crazy.” The judge recommended that a decision be made on whether Plummer’s comments violated a rule prohibiting “extra-tribunal statements,” and said a ruling on the ethical propriety of any of the defense attorneys’ actions should be made by the court’s Rules Counsel or the judge presiding over the Betancourt case.

I’ve read the JAG Corps’ PR Instruction and I would say Judge Thielemann is unnecessarily recommending a referral to Rules Counsel.  With regard to statements in response to information in the public domain through the actions of others:

Notwithstanding paragraphs a and b(l) through (7), a covered attorney may make a statement that a reasonable covered attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the covered attorney or the attorney’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

JAGINST 5803.1D, Rule 3.6(d).  Not knowing all the facts, in fact knowing only a tiny sliver of them, I can’t say there was or was not a violation.  But, particularly in light of the UCI ruling(s), what defense counsel seemed to be doing was attempting to mitigate the effects of the publicity about the raid.  Prior coverage of the ABA’s statement on the raid, and attorney-client privilege issues, here.

The suspect in the stabbing at Naval Medical Center Portsmouth is being handed over to Navy authorities after fleeing the base before the base was locked down reports WAVY TV 10 here. Another suspect who may have helped the PO3 Harwell escape is being questionned.

I don’t even know what to say about the USCGA’s decision not to prosecute a cadet at court-martial for entering a fellow cadets room while drunk and touching her on the leg, report here. The accused cadet said he went into the wrong room thinking it was his girlfriend’s room.

WaPo reports here that SGT Bowe Bergdahl was previously separated from the Coast Guard with an uncharacterized discharge and also gives us a glimpse of his thoughts about deploying from his journals.  Will this push him closer to court-martial?

Prior coverage of the Taliban prisoner exchange and potential UA/desertion charges here.

That’s the story in this report from McClatchy’s Michael Doyle:

For two days in a Washington Navy Yard courtroom, [Navy CDR Paul Walker] oversaw a hearing to determine whether there’s probable cause to think that Hospitalman Kevin McCormick Jr. sexually assaulted the sailor following a night of drinking and dancing. McClatchy’s policy is to not name alleged victims of sexual assault.

McCormick’s case is both typical and extraordinary.

What’s typical is the role of alcohol and the he-said-she-said conflict over events. The accuser says she was raped after she’d blacked out. McCormick says the sex was consensual.

What’s extraordinary is the still-open Naval Criminal Investigative Service probe into claims that the accuser tried to extort $1,000 from McCormick in exchange for her silence.

“I do know there’s a possibility that I could be charged,” the accuser testified Tuesday, “and there’s a possibility that I could not be charged.”

At the end of the report you’ll find the following additional details:

Awakening the next morning amid bloody bedsheets, the woman said she’d concluded that she’d been raped. In subsequent conversations with McCormick, who went to NCIS investigators after tape-recording their first call, the woman sought money.

“I’m going to say you raped me, if you don’t comply,” the woman said, according to one tape played at the hearing, adding, “The real question is, how much does your naval career mean to you?”

After having been gone for so long, I thought I would drop in to start a little $%*#-storm by posting this piece from Reuters which notes that Secretary of the Army John McHugh released a statement, here, which makes no mention that the Army has plans to court-martial Sgt. Bowe Bergdahl.  Of course, Bergdahl was recently returned to US forces from Taliban/Al Queada custody in a prisoner swap of sorts, see prior coverage here (NYT, May 31) and here (WSJ, today).  But, as many media outlets have covered, see e.g. WaPo here, Bergdahl allegedly walked off his post in Afghanistan before being captured by insurgents.  Commence comment $%*#-storm.

Stripes reports, here, that a military judge has dismissed charges against Air Force Chief Master Sgt. Roy A. Bowser Jr.  The government reportedly twice failed to disclose evidence that might be categorized as Brady v. Maryland, see United States v. Mahoney, 58 MJ 346 (C.A.A.F. 2003), and was likely required to be disclosed under R.C.M. 701, because it reportedly would have challenged the credibility of the victim in the case.

In this post on May 2, Phil broke the story of a prosecution-driven search of the Camp Pendleton Branch Office of the Marine Corps Defense Services Organization. The search was reportedly authorized by the cognizant installation commander, and reportedly sought a cell phone alleged to be in the possession of an accused’s military defense counsel.

Seven days later, in this post on May 9, Sam noted that the media was on to the story.

Last week, in this post on May 22, Phil provided us an update with details from a report by Associated Press writer Julie Watson that was reprinted in the Marine Corps Times. However, the Marine Corps Times version omitted part of Ms Watson’s report. As reported on the AP’s site:

Prosecutor, Maj. Doug Hatch, told the judge that the prosecution ordered the search as a last resort after the defense refused to hand over the phone.

“They were looking for one thing and one thing only,” he said. “They were not trying to seek out any other evidence.”

But the search didn’t stop with one phone or one office. Rather, as reported by Ms Watson:

Military investigators said they were looking for a cellphone in a separate case involving drug use and gang activity. Investigators testified Thursday that they continued to search all of the defense attorneys’ offices even after locating the cellphone in a desk drawer because the lawyers would not verify that it was in fact the correct phone.

Sadly, it seems that no new information about the search has been released to the public. However, today the President of the American Bar Association released a statement on “Attorney-client privilege and government surveillance”:

The American Bar Association recently met with National Security Agency General Counsel Rajesh De to discuss current government procedures for protecting the attorney-client privileged status of material obtained through government surveillance. We also discussed how those procedures may be further strengthened.

The ABA emphasized that the attorney-client privilege is essential to the fairness of our justice system and the independence of the legal profession. The privilege protects the confidential lawyer-client relationship and allows clients, whether they are businesses seeking regulatory guidance or criminal defendants facing loss of liberty, to candidly communicate with lawyers and receive effective counsel. The assurances received were encouraging, particularly that procedures are in place to minimize the acquisition, retention and dissemination of information related to U.S. persons, including any potentially privileged information.

This only begs questions such as: What (if any) procedures are in place to minimize the acquisition, retention and dissemination of privileged attorney-client communications when military prosecutors orchestrate a search of military defense counsel workspaces? Further, what safeguards exist to protect innumerable other attorney-client communication mediums that are routinely monitored (such as government computers that explicitly warn of monitoring at every log-in) from prosecution quests for evidence? Additionally, do commanders balance the need to protect the existence (never mind the public image) of the attorney-client privilege in the military against prosecution-driven search requests?

Finally, Ms Watson reports that Major Hatch told the military judge that this was a last resort. Was there really no other way?

Notably, Ms Watson’s report alludes to what’s at stake:

The findings of the May 2 search were revealed Thursday during a motions hearing for Lance Cpl. Eric Salinas, a defendant in a hazing case who wants to sever his relationship with his Camp Pendleton lawyers because of the search. He told the judge he wants to be represented by attorneys outside the base.

His defense lawyers went one step further and asked the judge to throw out the charges against him if he cannot get a fair trial because of the raid.

The ABA Journal is following the “raid” on Marine Corps defense counsel offices at Camp Pendleton.

Stars and Stripes reports here that:

Two veterans who advocate for injured or mentally ill soldiers filed a lawsuit saying they have been illegally barred from Fort Carson.

The lawsuit, filed in Denver federal court, says Robert Alvarez and Andrew Pogany were told in November 2012 their presence disrupted “good order and discipline” on the post. They say they were given no specifics.

Readers may recall our coverage of a lawsuit filed by private investigator Carolyn Martin over an order banning her from courtrooms at Camp Pendleton (and other claims).

A year ago, in this post, we noted the beginning of an investigation into Army Major General Michael T. Harrison’s handling of a sexual assault allegation against a subordinate. That investigation is complete, and according to this Stars and Stripes report, the investigation substantiated a number of allegations against the general. Stars and Stripes also reprints this Washington Post report, and provides this copy of the redacted report of investigation.

Some commenters have mentioned this story: McClathy reporter Michael Doyle writes this report about the reassignment of former Marine Corps military judge Lieutenant Colonel Palmer:

A Marine Corps officer whose bellicose prosecutorial rhetoric prompted defense complaints will now oversee defense attorneys, potentially including some who blew the whistle on him.

In a remarkable career turnabout, Lt. Col. Robert Palmer has been named the Marine Corps’ regional defense counsel for the eastern region. The new assignment puts Palmer in charge of about 30 defense attorneys at Marine Corps bases in North Carolina and South Carolina.

LtCol Palmer’s comments while serving as a military judge became part of our #8 Military Justice story of 2012, and are still an issue in some cases pending appellate review.

According to this report from Stars and Stripes:

An American airman has been charged in the death of a U.S. Navy petty officer who was found dead in the passenger seat of a car in Kaiserslautern during a traffic stop in Germany in December.

“On March 10, 2014, charges of murder and other violations of the Uniform Code of Military Justice were preferred against U.S. Air Force Staff Sgt Sean M. Oliver, 34, of American Forces Network – Europe,” 86th Airlift Wing spokeswoman Sandra Archer wrote in an emailed statement Friday to Stars and Stripes.

Oliver, a broadcast engineer for AFN at Ramstein Air Base in Germany, was charged with assaulting and strangling U.S. Petty Officer 2nd Class Dmitry Chepusov, who also worked for AFN. Oliver was also charged with obstructing justice and making false statements about Chepusov’s death, according to Archer.

Oliver, 34, was stopped by German police early on the morning of Dec. 14 for driving erratically and was later determined to have been legally intoxicated, according to a German police spokesman. During the stop, the police discovered Chepusov unresponsive in the car’s passenger seat. Medical personnel later pronounced Chepusov dead at the scene.

A German autopsy concluded that Chepusov died of “force to the neck,” and a German judge charged Oliver with manslaughter before he was remanded to U.S. custody.

Staff Sergeant Oliver was charged with numerous offenses, including premeditated murder. An Article 32 pretrial investigation was scheduled. But expecting that the Government would seek a capital referral, the Defense asked the convening authority to authorize the employment of a mitigation specialist to present evidence in extenuation and mitigation to aid the convening authority’s referral decision. The convening authority denied the request, and the Defense filed a petition for a writ of mandamus with the Air Force CCA in an effort to compel funding for the expert.

In a short order, the Air Force CCA denied the petition. Oliver v. Mordente, No. 2014-04 (A. F. Ct. Crim. App. May 9, 2014) (link to order).  Noting that “no court-martial exists at this point, let alone a court-martial referred as a capital case,” and that “no military judge has had the opportunity to rule on any motions related to the pretrial investigation or the appointment of an expert,” the CCA explains that:

Even when a case is referred as a capital matter, servicemembers do not have a per se right to a government-funded mitigation expert. United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F. 2005). Prior to referral, determination of whether to approve a defense request for an expert witness is left to the province of the convening authority. R.C.M. 703(d).

Order at 2.

Read more »

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.